How do I Get Sole Custody of My Child?
By Kayla Curtis 
Updated: 4 October 2023 · Read time: 6 minutes
To obtain sole custody of a child, a parent will need to apply to the Family Court or Federal Circuit Court (FCFOA), and demonstrate that a relationship with the other parent is not in the child's best interest.
They will need to provide evidence to support their case, which might include:
- Evidence of abuse or neglect by the other parent
- Evidence of drug or alcohol abuse by the other parent
- Evidence that the other parent is not involved in the child’s life or is unable to provide a safe and stable environment
- Evidence that the child has a strong preference to live primarily with one parent
It’s important to note that obtaining sole custody can be a difficult and emotionally challenging process, and it’s essential to seek professional legal advice before proceeding.
What is Sole Custody?
As a starting point, Australian Family Law assumes that equal shared responsibility between both of a child’s parents is ideal.
This viewpoint is premised that shared responsibility by both parents is most in the child’s interests. Therefore to get sole custody, you will need to demonstrate that shared responsibility is not in the child’s best interests.
Sole custody is a type of custody arrangement in which one parent has legal and physical custody of the child or children.
This means that the parent with sole custody is responsible for making all major decisions related to the child's upbringing, such as education, health care, and religion.
The other parent may still have some limited rights to access and visitation, but they do not have the same decision-making authority as the parent with sole custody.
How do I Get Sole Custody in Australia?
In Australia, the courts typically encourage parents to work together to come up with a mutually agreeable custody arrangement.
If this is not possible, the court will consider a range of factors to determine what is in the best interests of the child.
What Custody Arrangement is Best for a Child?
There is no one-size-fits-all answer to this question, as every family's situation is unique.
In general, however, research has shown that children benefit from having both parents actively involved in their lives, provided that they are able to do so in a safe and stable environment.
In cases where there are concerns about abuse, neglect, or other safety issues, a custody arrangement that prioritises the child's safety and well-being is likely to be in their best interests.
What is the Most Common Custody Arrangement in Australia?
The most common custody arrangement in Australia is shared parental responsibility, in which both parents have legal responsibility for making major decisions related to the child's upbringing.
This does not necessarily mean that the child spends equal time with each parent, but rather that both parents have an equal say in important decisions about the child's life.
Can a Mother Stop a Father from Seeing Child in Australia?
No, a mother cannot unilaterally prevent a father from seeing their child in Australia. Both parents have a legal right to spend time and communicate with their child, and this right is protected under the Family Law Act.
If a mother attempts to prevent a father from seeing their child, the father can seek a court order to enforce his parenting rights.
Parental Responsibility or Sole Custody?
It's important to understand that parental responsibility and custody are two distinct concepts in Australian family law.
Parental responsibility refers to the legal responsibility for making major decisions related to the child's upbringing, while custody refers to the physical care and living arrangements of the child.
In many cases, both parents will share parental responsibility, even if one parent has sole custody.
This means that both parents have a legal say in major decisions about the child's life, even if the child primarily lives with one parent.
FAQs
What do Judges look for in Child Custody Cases?
Judges consider the best interests of the child as the primary factor when making decisions about child custody.
This means that the court will assess various factors such as the child's age, needs, and development, the capacity of each parent to provide for the child's physical and emotional needs, and the history of the relationship between the child and each parent.
How is it established that children want to live with one parent over another?
The court may take into account the views of the child when making a decision about custody, but this is not the only factor that is considered.
The weight given to a child's views will depend on the child's age, maturity, and capacity to express their views.
The court may also consider the child's reasons for wanting to live with a particular parent and whether this is in the child's best interests.
What is the Relevant legislation?
In Australia, the relevant legislation regarding child custody is the Family Law Act 1975. This legislation provides the framework for resolving disputes about parenting arrangements, including custody.
Can One Parent Seek Full Custody If The Other Parent Objects?
If one parent seeks full custody and the other parent objects, the court will assess the situation based on the best interests of the child.
The court may order an independent children's lawyer to represent the child's interests, and may also order a family report to be prepared to help inform the court's decision.
What Evidence Is Relevant To An Order For Sole Parental Responsibility?
When seeking an order for sole parental responsibility, evidence that is relevant may include the child's best interests, the capacity of each parent to provide for the child's needs, the history of the relationship between the child and each parent, and any incidents of family violence.
The court may also consider the views of the child, although the weight given to these views will depend on the child's age, maturity, and capacity to express their views.
Conclusion
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